BC Appeal Court Finds 6-Plant Mandatory Minimum Unconstitutional

A Canadian appellate court has, for the first time, ruled unconstitutional a contentious mandatory minimum provision that saw individuals imprisoned for 6 months for producing as few as 6 marijuana plants.

The provision, ss 7(2)(b)(i) of the federal Controlled Drugs and Substances Act, was introduced by the previous Harper government. It enabled Crown prosecutors to seek a minimum jail sentence of 6 months for offenders found producing more than 5 plants if the production could be shown to be for the purposes of trafficking.

While a similar case, called Vu, is making its way through the appeal court system in Ontario, this BC case (entitled “Elliot”) is the first to find its way to a Canadian appeals court. The decision is binding on all lower courts in British Columbia, and while it is not binding on courts elsewhere in the country, it will be quite a persuasive authority for defence lawyers to draw from.

A landmark 2015 Supreme Court case called Nur enabled defence lawyers to challenge mandatory minimums if they could pose realistic “reasonable hypotheticals” in which the impugned punishment would be grossly disproportionate, and thus violating s 12 of the Charter. That Charter section says that Canadians must not be subject to cruel and unusual punishment.

This meant that veteran cannabis lawyer John Conroy, defence counsel in Elliot, had to draw up at least one reasonable hypothetical that could sway the judges. While the appeals court did not outright accept Mr. Conroy’s hypotheticals—including one in which a hippie grows six pot plants and shares it with family—the court modified the hypotheticals and found that the provision would be grossly disproportionate for a 19 year old who grows six plants and shares a bit with friends. Ultimately, the court affirmed the decision of the lower court that found the provision unconstitutional.